Certain witnesses who spoke before the grand jury investigating the Aug. 9 shooting of Michael Brown told obvious lies under oath, St. Louis Prosecuting Attorney Robert McCulloch said Friday.

“Clearly some were not telling the truth,” he said during an interview on KTRS 550. He added that he’s not planning to pursue charges against any lying witnesses.

In his first extensive interview since the grand jury decided not to indict Ferguson Police Officer Darren Wilson, McCulloch said he had no regrets about letting grand jury members hear from non-credible witnesses.

“Early on I decided that anyone who claimed to have witnessed anything would be presented to the grand jury,” McCulloch said. He added that he would’ve been criticized no matter his decision.

During the interview, McCulloch referenced a woman who claimed to have seen the shooting.

This “lady clearly wasn’t present,” McCulloch said. “She recounted a story right out of the newspaper,” backing up Wilson’s version of events.

The criticism of that witness fits the questions surrounding Sandra McElroy, also known as Witness 40.

McElroy, who’s admitted to using racial slurs and trying to raise money for Wilson, testified that she saw the entire shooting unfold, and that Brown charged the officer shortly before he was killed — a detail that has proven controversial because of conflicting reports.

Investigators picked apart McElroy’s story, saying she could not have left the apartment complex in the way she described.

She also gave conflicting accounts of why she was at the scene of the shooting that day and admitted that she has short-term memory problems from a head-on collision that left her with a traumatic brain injury.

Previously it was not believed that McCulloch would face any legal consequences for his actions to keep Wilson from being tried. Maybe this will change in light of his admission that he used testimony from people who were lying. Buzzfeed pointed out that McCulloch’s use of a witness who “clearly wasn’t present” might also be a violation of both professional ethics and the law:

McCulloch’s acknowledgment that he knew some of the witness accounts were untrue raises ethical questions about his office’s presentation to the grand jury.

According to Missouri Rules of Professional Conduct, RULE 4-3.3, “A lawyer shall not knowingly offer evidence that the lawyer knows to be false.”

The law also says that a lawyer “may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

“A lawyer should not present testimony that he believes to be false,” Steven Lubet, a law professor at Northwestern University, told BuzzFeed News. “That is especially true in a proceeding that lacks all of the usual safeguards, such as opposing counsel and a judge.”

I’m sure there will be more legal opinions to come regarding McCulloch’s actions.

Following the release of the grand jury decision in Ferguson there have been multiple media reports of other acts of excessive violence by police officers, such as the killing of Eric Garner. You would think that police officers would be more cautious following these negative media reports, but there was yet another incident. The New York Daily News reports:

Internal Affairs is investigating the circumstances of an arrest, captured on video, that shows a plainclothes cop repeatedly punching a teen suspect in the body as three uniformed cops were trying to subdue and handcuff him, police said.

9 Comments

So, nothing to say about the numerous ‘witnesses’ who lied about Brown’s behaviour including the fatuous ‘hands up’ myth!

If the prosecutors had picked and chosen the witnesses they thought ‘appropriate’ you would be screeching that it was all a fix. They didn’t, they let the jury hear everything and left them to make up their own minds – NOT GUILTY!

Once again, despite your denials in another thread, you are 100% in lockstep with American conservatives who 1) ignore the actual facts, 2) invent their own facts, and 3) do this to defend actions which are morally repugnant.

Hands up myth? There are both eyewitnesses and forensic evidence that Michael Brown was raising his hands and attempting to surrender when he was shot. This is hardly a preposterous claim considering that there are other known cases of police shooting blacks after surrendering, and racial relations around St. Louis were among the worst in the country even before Ferguson.

While much of the evidence suggests Wilson was guilty, there certainly is contradictory evidence. Under our legal system there is a clear means of determining the facts in the face of such contradictions–holding an open trial in which witnesses for both sides undergo cross examination. It was improper that this was not done. It was also improper that evidence was handled in a manner which covers up further findings which might have provided further evidence that Wilson was guilty.

“If the prosecutors had picked and chosen the witnesses…”
You make multiple mistakes in this sentence. Prosecutors are supposed to pick and chose the witnesses. The purpose of a prosecutor going before a grand jury is to pick and chose the witnesses to present the prosecution case that the person is guilty. Defense arguments are not presented at a grand jury. All the evidence is not given at a grand jury.

Not only was the evidence improperly given at a grand jury, it was done without cross examination. Wilson’s story was presented to the grand jury as fact by the prosecutor, which already is improper for a grand jury. This was made worse by the fact that there was no cross examination despite Wilson making statements which were contradicted by eye witnesses and forensic evidence. There were also many irregularities in how evidence was collected to protect Wilson.

A prosecutor also is not supposed to bring in witnesses who are clearly lying, as he has admitted to doing in this interview.

“they let the jury hear everything and left them to make up their own minds”
You are making three major errors here. First a grand jury is not supposed to hear “everything.” Secondly they did not hear everything. They never heard a cross examination of Wilson and other witnesses who appear to have been lying. Thirdly they were not left to make up their own minds. The transcript shows that the proceedings were conducted in a manner designed to exonerate Wilson. This is opposite to how a grand jury is supposed to work.

A grand jury has specific functions. Instead of having it perform those functions, you are having it act in a different way than it would act for a defendant who is not a police officer in order to protect police officers who have committed a crime from facing trial.

You also made a serious logical and factual error in claiming that the jury came to a decision of not guilty. This did not happen and could not possibly happen. A grand jury can only decide if there is probable cause to take someone to trial. A grand jury does not decide guilt or innocence.

In passing on this right wing misinformation you are supporting two conservative positions which are morally repugnant. First you are defending their view that some people are above the law and should be spared a trial when there is probable cause for them to go to trial. There is an incestuous relationship between the prosecutors offices and the police departments creating a wide spread problem of police officers who do commit crimes often being allowed to get away with it without fear of prosecution, but conservatives defend this situation. Secondly we have a serious racial problem which leads some police officers to believe that they have the right to engage in violence, including shooting, black suspects, often after they are in custody. Again, conservatives regularly twist the facts to allow this practice to continue.

Huff ‘n’ puff! Everything I read about the medical and forensic evidence indicated that Brown started by attacking Wilson in his car in an effort to steal his gun. Then he made to come back for a second try. Anyway, it doesn’t matter what you or I think, the jury heard *everything* without the prosecutor picking and choosing. The way you Lefties squeal when someone – anyone – even a jury that has sat for weeks listening to the evidence has the temerity to disagree with the Sharpton & Jackson Road Show. Thus, like the sort of dictatorial regimes you all admire so much, you want the legal proceedings repeated and repeated and repeated until finally a jury come sup with, er, the ‘correct’ verdict!

Not just huff ‘n’ puff but good, old-fashioned humbuggery of the first water!

Actually, whilst I’m here but off topic, is ‘Breaking Bad’ as good as so many people say it is? I ask because I am thinking of buying the box set. I suppose the best way to pose my question is to ask how it rates against ‘The Wire’, than which, etc, etc …

Hey Ron Chusid,
If you did not know the GOP pays people to come on sites like this one to push their propaganda. The odds are thatDavid Duff is a paid lackey of the GOP. He will not listen to what you say. See if it is off script most of them find it very hard to answer for that would required independent thought.

The claims of him trying to seal the gun have a lot of holes in them. Regardless, that is the type of thing which under our legal system is resolved at a trial, under the rules of evidence at a trial.

Again, hearing everything is not how a grand jury is conducted, and they did not hear everything if Wilson never faced cross examination. See answer above again. Plus don’t confuse the issue–a grand jury is not a jury trial. It does not review the evidence, does not hear cross examination, and does not determine guilt or innocence.

I most certainly am not calling for proceedings to be repeated, nor do I admire any dictatorial regimes. I want a single jury trial to decide. So far we have not had a jury trial. It is not dictatorial to want a single fair trial. It is dictatorial to allow the police to kill people and not face a trial.

Yes, definitely watch Breaking Bad. It ranks among the best things ever on television. My wife and I hadn’t watched it and we decided to try to binge in order to catch up the weekend that the finale actually was on. We loved it so much that we caught up in a little over a week. This put us a week ahead of schedule so we could watch the second from last episode with everyone else and enjoy the discussion, along with watching the finale when it was on.

Prior to Friday’s interview the conventional wisdom was that, due to the high degree of prosecutural discretion allowed, he would not face any punishment. I also contemplated the idea of disbarment or other disciplinary action in light of the admission that he used testimony of people who were clearly lying, essentially resulting in an obstruction of justice. I’m waiting to see what more lawyers have to say about this.

I’m aware of the GP schemes, including paying people to comment on blogs. I have no way to know for sure but my bet is that David Duff is just someone conned by Republican propaganda and not on the GOP payroll. I know he will not listen to what I say–brainwashed people are like that. It doesn’t necessarily mean he is on their payroll. I’m not going to waste too much time responding to right wing talking points in comments (as opposed to full posts) but this actually took very little time. I had already responded to these same points more than once when conservatives responded to previous posts which I cross posted at The Moderate Voice.

Ray! Is that true? I mean, will the GOP actually PAY ME for my opinions which are 75-year’s old and born and bred and nurtured in England? What can I say, except, where do I apply?

And you are right, I do not “listen” to Ron’s opinions, I *read* them! Oh, and no-one gives me a script except, darling, when I have played some great roles on stage. My ‘Launcelot Gobbo’ is still spoken of in hushed whispers! And I didn’t get paid for that, either! Can’t think why Hollywood didn’t snatch me up, probably because they are all totally soppy Lefties out there in ‘La-La-land’!

OK, Ron, on your head be it and I will buy that box set – or better still, drop a few hints around my birthday it being too late for Xmas.

You really should apply. You can use me as a reference. With the internet it doesn’t matter than you are over in England as long as you are going on blogs and reciting right wing talking points.

Amazon can still deliver in the US in time for Christmas. I assume they can do it for you also. You will just have to be quick with dropping hints. Over here Breaking Bad is also available to stream on Netflix. Assuming it is available for you and costs are similar it would be more economical to get Netflix for a month (even if you don’t want it long term).